HomeMy WebLinkAboutOrd 2018-3417ORDINANCE NO. 3417
ORDINANCE OF THE CITY OF CHULA VISTA AMENDING
CHULA VISTA MUNICIPAL CODE CHAPTER 5.56 TO
PERMIT AND REGULATE TOBACCO RETAILERS
WHEREAS, based in part on the information contained in this section, the City Council
finds that the public health, safety, and welfare of the residents of the Chula Vista is threatened
when tobacco retailers fail to comply with all tobacco control laws, particularly laws prohibiting
the sale of tobacco products to minors; and
WHEREAS, the City Council finds that a local permitting system for tobacco retailers is
appropriate to ensure that retailers comply with tobacco control laws and business standards of
the City, to protect the health, safety, and welfare of our residents; and
WHEREAS, the California Legislature has recognized the danger of tobacco use and has
made reducing youth access to tobacco products a high priority, as evidenced by the fact that:
• The Legislature has declared that smoking is the single most important source of
preventable disease and premature death in California (Cal. Health & Safety Code §
118950); and
• State law prohibits the sale or furnishing of cigarettes, tobacco products, and
tobacco paraphernalia to persons under 21 (Cal. Pen. Code § 308); and
• State law requires that tobacco retailers check the identification of tobacco
purchasers who reasonably appear to be under 21 years of age (Cal. Bus. & Prof. Code §
22956) and provides procedures for using minors to conduct onsite compliance checks of
tobacco retailers (Cal. Bus. & Prof. Code § 22952); and
• State law prohibits the sale of tobacco products and paraphernalia through self-
service displays with limited exceptions for tobacco stores (Cal. Bus. & Prof. Code §
22960, 22962); and
• State law prohibits the sale of “bidis” (hand-rolled filter-less cigarettes imported
primarily from India and Southeast Asian countries) except in adult-only establishments
(Cal. Pen. Code § 308.1); and
• State law prohibits the manufacture, distribution, or sale of cigarettes in packages
of less than 20 and prohibits the manufacture, distribution, or sale of “roll-your-own”
tobacco in packages containing less than 0.60 ounces of tobacco (Cal. Pen. Code §
308.3); and
WHEREAS, state law requires all tobacco retailers to be licensed by the Board of
Equalization primarily to curb the illegal sale and distribution of cigarettes due to tax evasion
and counterfeiting (Cal. Bus. & Prof. Code §§ 22970.1, 22972); and
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WHEREAS, state law explicitly permits cities and counties to enact local tob acco retail
licensing ordinances, and allows for the suspension or revocation of a local license for a violation
of any state tobacco control law (Cal. Bus. & Prof. Code § 22971.3); and
WHEREAS, state and local law prohibits sales of “drug paraphernalia”; and
WHEREAS, many retailers nevertheless sell items that are commonly known to be “drug
paraphernalia,” including bongs and pipes used to smoke methamphetamine and other illicit
drugs, claiming that such items are intended for tobacco use; and
WHEREAS, several California cities require compliance with state drug paraphernalia
laws as a condition of obtaining and maintaining a local tobacco retailer license; and
WHEREAS, California courts have affirmed the power of the City to regulate business
activity to discourage violations of law. See, e.g., Cohen v. Board of Supervisors, 40 Cal. 3d 277
(1985); Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993); Prime Gas, Inc.
v. City of Sacramento, 184 Cal. App. 4th 697 (2010); and
WHEREAS, research demonstrates that local tobacco retail ordinances dramatically
reduce youth access to cigarettes. For example:
• A 2013 American Lung Association in California review of 33 California
communities with strong tobacco retailer licensing ordinances shows that the youth sales rate
declined in 31 of these communities after the ordinances were enacted, with an average
decrease of 26 percent in the youth sales rate; and
• The California Department of Health, Tobacco Control Section, reports that over 90
percent of enforcement agencies surveyed rated license suspension or revocation after
repeated violations as an effective strategy to reduce youth access to tobacco; and
• A 2012 study by the U.S. Department of Health and Human Services found that odds of
daily smoking were reduced by 2% for each 1% increase in merchant compliance with youth
access laws; and
WHEREAS, over 100 cities and counties in California have passed tobacco retailer
licensing ordinances in an effort to stop minors from using tobacco; and
WHEREAS, a requirement for a tobacco retailer license will not unduly burden
legitimate business activities of retailers who sell or distribute cigarettes or other tobacco
products to adults. It will, however, allow the City to regulate the operation of lawful businesses
to discourage violations of federal, state, and local tobacco-related laws; and
WHEREAS, City has a substantial interest in promoting compliance with federal, state,
and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of
tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes
and tobacco products to minors; and finally, and most importantly, in protecting children from
being lured into illegal activity through the misconduct of adults.
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NOW, THEREFORE, it is the intent of the City Council, in enacting this ordinance, to
ensure compliance with the business standards and practices of the City and to encourage
responsible tobacco retailing and to discourage violations of tobacco-related laws, especially
those which prohibit or discourage the sale or distribution of tobacco and nicotine products to
minors, but not to expand or reduce the degree to which the acts regulated by federal or state law
are criminally proscribed or to alter the penalties provided therein.
NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows:
Section I. Chapter 5.56 of the Chula Vista Municipal Code is hereby amended to read as
follows:
Chapter 5.56
TOBACCO RETAILER
Sections:
5.56.010 Definitions.
5.56.020 Tobacco Retailer’s Permit Required.
5.56.030 Permit Application and Procedure.
5.56.040 Issuance of a Permit.
5.56.050 Permit Renewal and Expiration.
5.56.060 Permits Nontransferable.
5.56.070 Permit Conveys a Limited, Conditional Privilege.
5.56.080 Permit Fee.
5.56.090 Tobacco Retailer Operating Requirements and Prohibitions.
5.56.100 Compliance Monitoring.
5.56.110 Suspension or Revocation of Permit.
5.56.120 Violations; Penalties.
5.56.130 Requirement for Tobacco Retailer Permit; Operative Date.
CROSS REFERENCE: Sales and Use Tax, see Ch. 3.36 CVMC. Smoking prohibited, see Ch.
8.22 CVMC.
5.56.010 Definitions.
The following words and phrases, whenever used in this chapter, shall have the meanings
defined in this section unless the context clearly requires otherwise:
A. “Arm’s Length Transaction” means a sale in good faith and for valuable consideration that
reflects the fair market value in the open market between two informed and willing parties,
neither of which is under any compulsion to participate in the transaction. A sale between
relatives, related companies or partners, or a sale for which a significant purpose is avoiding the
effect of the violations of this chapter is not an Arm’s Length Transaction.
B. “Applicant” means the Person applying for a permit pursuant to this chapter.
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C. “Chief of Police” means the Chief of Police of the City of Chula Vista, or his/her designee.
D. “City” means the City of Chula Vista.
E. “City Attorney” means the City Attorney for the City of Chula Vista, or his/her designee.
F. “Crime of Moral Turpitude” means a crime involving a readiness to do evil, an act of moral
depravity of any kind that has a tendency in reason to shake one’s confidence in their honesty,
deceit, or fraud.
G. “Drug Paraphernalia” has the meaning set forth in California Health & Safety Code section
11014.5, as that section may be amended from time to time.
H. “Electronic Smoking Device” means an electronic device that can be used to deliver an
inhaled dose of nicotine, or other substances, including any component, part, or accessory of
such a device, whether or not sold separately. “Electronic Smoking Device” includes any such
device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an
electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other
product name or descriptor.
I. “Owner” means a Person with an ownership or managerial interest in a business. An
ownership interest shall be deemed to exist when a Person has a twenty percent (20%) or greater
interest in the stock, assets, or income of a business other than the sole interest of security for
debt. A managerial interest shall be deemed to exist when a Person can or does have or share
ultimate control over the day-to-day operations of a business.
J. “Person” means any natural person, partnership, cooperative association, corporation, personal
representative, receiver, trustee, assignee, or any other legal entity.
K. “Police Department” means the Chula Vista Police Department, and any agency or Person
designated by the Department to enforce or administer the provisions of this chapter.
L. “Self-Service Display” means the open display or storage of Tobacco Products or Tobacco
Paraphernalia in a manner that is physically accessible in any way to the general public without
the assistance of the retailer or employee of the retailer and a direct person-to-person transfer
between the purchaser and the retailer or employee of the retailer. A vending machine is a form
of Self-Service Display.
M. “Tobacco Paraphernalia” means any item designed for the consumption, use, or preparation
of a Tobacco Product.
N. “Tobacco Product” means:
1. any product containing, made, or derived from tobacco or nicotine that is intended for
human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted,
sniffed, or ingested by any other means, including, but not limited to cigarettes, cigars, little
cigars, chewing tobacco, pipe tobacco, snuff; and
2. any Electronic Smoking Device.
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3. Notwithstanding any provision of subsections (1) and (2) to the contrary, “tobacco product”
includes any component, part, or accessory of a tobacco product, whether or not sold separately.
“Tobacco product” does not include any product that has been approved by the United States
Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic
purposes where such product is marketed and sold solely for such an approved purpose.
O. “Tobacco Retailer” means any Person who sells, offers for sale, or does or offers to exchange
for any form of consideration, tobacco, Tobacco Products or Tobacco Paraphernalia. “Tobacco
Retailing” shall mean the doing of any of these things. This definition is without regard to the
quantity of Tobacco Products or Tobacco Paraphernalia sold, offered for sale, exchanged, or
offered for exchange. Tobacco Retailer does not include persons licensed by the City to conduct
commercial cannabis activity in accordance with chapter 5.19 of this code.
5.56.020 Tobacco Retailer’s Permit Required.
It shall be unlawful for any Person to act as a Tobacco Retailer in the City without first obtaining
and maintaining, for each location at which Tobacco Retailing is to occur, a valid Tobacco
Retailer’s permit pursuant to this chapter, a valid business license pursuant to chapter 5.02 of this
code, and any and all required state licenses, including but not limited to a California Cigarette
and Tobacco Products Retailer’s License.
5.56.030 Permit Application and Procedure.
A. All applications shall be submitted on a form supplied by the Police Department and shall
include, but not be limited to, the following information:
1. The Applicant’s business name and address.
2. The address of the proposed Tobacco Retailer business location.
3. If the Applicant is a natural person:
a. the full true name and any other names ever used by the Applicant;
b. the current residential address and telephone number of the Applicant;
c. written proof that the applicant is 21 years of age or older;
d. the Applicant’s height, weight, and color of eyes and hair;
e. the Applicant’s valid social security number;
f. photographs of the Applicant as specified by the Chief of Police;
g. the applicant’s business, occupation, and employment history for the five years
immediately preceding the date of application, including addresses and dates of employment;
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h. a list of all crimes for which the applicant has been convicted, including those dismissed
pursuant to Penal Code section 1203.4, except traffic infractions, and a statement of the dates and
places of such convictions;
4. If the Applicant is a corporation, the name of the corporation exactly as shown in its Articles
of Incorporation or Charter, together with the state and date of incorporation, the names and
residential addresses of each of its current officers and directors, and of each stockholder holding
more than 25 percent of the stock of the corporation.
5. If the Applicant is a partnership, the name and residential address of each of the partners,
including limited partners. If one or more of the partners is a corporation, the Applicant shall
provide the information about that partner required by 5.56.030(A)(4) above.
6. If the Applicant is a limited partnership, a copy of the limited partnership’s certificate of
limited partnership as filed with the County Clerk. If one or more of the partners is a corporation,
the Applicant shall provide the information about that partner required by 5.56.030(A)(4) above.
7.If the Applicant is a corporation or partnership, the name of the responsible managing
officer pursuant to 5.56.030(C) below.
8. A single name and mailing address authorized by the Applicant to receive all
communications and notices (the “Authorized Address”) required by, authorized by, or
convenient to the enforcement of this chapter. If an Authorized Address is not supplied, the
Applicant shall be understood to consent to the provision of notice at the address specified in
subparagraph 1 above.
9. All fictitious business names ever used by the Applicant and the respective addresses of
those businesses.
10. Whether the Applicant has ever had any license or permit issued by any agency or board,
or any city, county, state, or federal agency suspended or revoked, or has had any professional or
vocational license or permit suspended or revoked within five years immediately preceding the
application, and the reason for the suspension or revocation.
11. The name and address of the current owner and lessor of the real property upon which the
proposed Tobacco Retailing business is to be conducted, and a copy of the lease or rental
agreement.
12. Copies of all business tax certificates and local business licenses.
13. Copies of applications for licenses and licenses issued pursuant to California Business and
Professions Code sections 22970, et seq., the “Cigarette and Tobacco Products Licensing Act of
2003”. If an application for a license pursuant to the “Cigarette and Tobacco Products Licensing
Act of 2003” has been denied, copies of documentation regarding the reason for the denial of
such license.
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14. At the discretion of the Chief of Police, such other identification and information,
including fingerprints, as may be required in order to discover the truth of the matters herein
and/or deemed necessary for the administration or enforcement of this chapter as specified on the
application form required by this section.
B. Owners, Corporate Officers, Partners Deemed Applicants. Each Owner of a Tobacco Retailer
applicant is deemed a co-Applicant and each shall provide the information required in
5.56.030(A) above. For Tobacco Retailer applicants with less than twenty (20) employees, each
corporate officer or partner of a Tobacco Retailer is deemed a co-Applicant and each shall
provide the information required in 5.56.030(A) above.
C. Designation of Responsible Managing Officer. A Tobacco Retailer applicant that is a
corporation or partnership shall designate one of its officers or general partners to act as its
responsible managing officer. The responsible managing officer may complete and sign all
applications on behalf of the corporate officers and partners.
D. Change in Information. An Applicant shall inform the Police Department in writing of any
change in the information submitted on an application for a Tobacco Retailer’s Permit within ten
(10) business days of a change.
E. All information specified in an application pursuant to this section shall be subject to
disclosure under the California Public Records Act (California Government Code section 6250 et
seq.) or any other applicable law, subject to the laws’ exemptions.
F. Application Fee. The Applicant shall pay an application fee in an amount to be set by the City
Council to cover the costs incurred by the City to process the application.
5.56.040 Issuance of a Permit.
A. Upon the receipt of a complete application for a Tobacco Retailer’s permit and the permit fee
required by this chapter, the Chief of Police shall have authority to grant or deny the application
for Tobacco Retailer permit. An application for permit may be denied by the Chief of Police for
any of the following reasons:
1. The application is received after the designated time and date.
2. The application is not in the required form and/or is incomplete.
3. The Applicant has made a false, misleading, or fraudulent statement, or omission of fact in
the application or in the application process;
4. The Applicant or a co-Applicant has failed to submit fingerprints or other information
deemed necessary by the Chief of Police pursuant to 5.56.030 above.
5. The Applicant or a co-Applicant has within five years immediately preceding the date of the
filing of the application been convicted of, suffered any civil penalty, or faced administrative
action against any type of license for violations of any tobacco control law, including but not
limited to the following offenses: Penal Code section 308, Business and Professions Code
sections 225950, et seq. (“Stop Tobacco Access to Kids Enforcement Act” or the “STAKE
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Act”), Business and Professions Code sections 22970, et seq. (“Cigarette and Tobacco Products
Licensing Act of 2003”), or a charge of violating a lesser-included or lesser-related offense
including, but not limited to, Penal Coe 415, in satisfaction of, or as a substitute for, an original
charge of any of the offenses listed in this section.
6. The Applicant or a co-Applicant has within ten years immediately preceding the date of the
filing of the application been convicted of any felony criminal offense or any Crime of Moral
Turpitude.
7. There are charges pending against the Applicant or a co-Applicant for a felony offense, a
Crime of Moral Turpitude, or an offense involving the use of a weapon.
8. The Applicant or a co-Applicant has within five years immediately preceding the date of the
filing of the application been convicted of, suffered any civil penalty, or faced administrative
action for violation of local, state, or federal law.
9. The Applicant seeks authorization for Tobacco Retailing that is prohibited pursuant to this
chapter, that is unlawful pursuant to this Code including without limitation the zoning, building,
and business license tax regulations and codes, or that is unlawful pursuant to any other law.
10. The Applicant or a co-Applicant has had a Tobacco Retailer’s renewal permit or an
application for a Tobacco Retailer’s permit denied within one year prior to the date of
application.
11. The Applicant or a co-Applicant is ineligible for a Tobacco Retailer permit pursuant to
section 5.56.120.
B. The Chief of Police shall serve the Applicant, either personally or by first class mail addressed
to the Authorized Address, with dated written notice of the decision to approve or deny the
application for Tobacco Retailer’s permit. If the application has been approved, the notice shall
state the permit fee amount, the date by which the permit fee must be paid, and the location
where payment must be made. If the application has been denied, the notice shall state the
reasons for denial, the effective date of the decision, and the right of the applicant to appeal the
decision to the City Manager. Any appeal must be filed in writing with the City Clerk within
fourteen days of service of the notice. The City Manager’s determination regarding the
application shall be final. The City Manager shall provide dated written notice to the applicant,
either personally or by first class mail addressed to the Authorized Address, of the City
Manager’s determination and the right of the applicant to seek judicial review of the City
Manager’s determination.
C. No permit shall issue pursuant to this chapter unless the permit fee, established in accordance
with 5.56.080, has been timely paid pursuant to the notice issued above.
D. A permit issued under this chapter shall be valid for a period of one year from the date of the
issuance or from the date of renewal.
5.56.050 Permit Renewal and Expiration
A. A Tobacco Retailer’s permit shall automatically renew on an annual basis unless the Chief of
Police determines prior to the date on which the permit is to be automatically renewed that any
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of the factors identified in subsection C below exist. A Tobacco Retailer shall have the duty to
ensure that all City records generated pursuant to this chapter are accurate and up-to-date prior to
automatic renewal.
B. The Tobacco Retailer shall pay a renewal fee established pursuant to 5.56.080 prior to the
date on which the permit is to be automatically renewed.
C. The Chief of Police shall have authority to grant or deny the renewal permit. A renewal
permit may be denied by the Chief of Police for any of the following reasons:
1. Any of the grounds for suspension or revocation under section 5.56.110 exist;
2. The permit is suspended or revoked at the time of the application;
3. The Tobacco Retailer has not been in regular and continuous operation in the four months
prior to the renewal application.
4. The Tobacco Retailer fails to or is unable to renew any required state licenses.
5. The Tobacco Retailer has failed to pay the renewal fee established pursuant to 5.56.080 prior
to the date on which the permit is to be automatically renewed.
6. The Tobacco Retailer fails to ensure that all City records generated pursuant to this chapter
are accurate and up-to-date prior to the automatic renewal.
D. The Chief of Police is authorized to make all decisions concerning the issuance of a renewal
permit. In making the decision, the Chief of Police is authorized to impose additional conditions
on a renewal permit if it is determined to be necessary to ensure compliance with state or local
laws and regulations or to preserve the public health, safety or welfare.
E. The Chief of Police shall serve the Tobacco Retailer, either personally or by first class mail
addressed to the Authorized Address, with dated written notice of the decision to approve or
deny the renewal permit. A denial notice shall state the reasons for the action, the effective date
of the decision, and the right of the Tobacco Retailer to appeal the decision to the City Manager.
Any appeal must be filed in writing with the City Clerk within fourteen days of service of the
notice. The City Manager’s determination regarding the renewal permit shall be final. The City
Manager shall provide dated written notice to the Tobacco Retailer, either personally or by first
class mail addressed to the Authorized Address, of the City Manager’s determination and the
right of the Tobacco Retailer to seek judicial review of the City Manager’s determination.
5.56.060 Permits Nontransferable.
A. A Tobacco Retailer’s permit may not be transferred from one Person to another or from one
location to another. A new Tobacco Retailer’s permit is required whenever a Tobacco Retailer
has a change in more than 20% ownership of the Tobacco Retailer or whenever a Tobacco
Retailer changes location.
B. Notwithstanding any other provision of this chapter, prior violations at a Tobacco Retailer
location shall continue to be counted against the location and permit ineligibility periods shall
continue to apply to the location unless:
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1. the location has been transferred to new Owner in an Arm’s Length Transaction; and
2. the new Owner provides the City with clear and convincing evidence that the new Owner(s)
have acquired or are acquiring the location in an Arm’s Length Transaction.
5.56.070 Permit Conveys a Limited, Conditional Privilege.
Nothing in this chapter shall be construed to grant any Person obtaining and maintaining a
Tobacco Retailer’s permit any status or right other than the limited conditional privilege to act as
a Tobacco Retailer at the location in the City identified on the face of the permit. It is the
responsibility of each permittee to be informed regarding all laws applicable to Tobacco
Retailing, including those laws affecting the issuance of a Tobacco Retailer’s Permit. No
permittee may rely on the issuance of a permit as a determination by the City that the permittee
has complied with all laws applicable to Tobacco Retailing. Nothing in this chapter shall be
construed to vest in any Person obtaining and maintaining a Tobacco Retailer’s license any status
or right to act as a Tobacco Retailer in contravention of any provision of law.
5.56.080 Permit Fee.
The fee to issue or to renew a Tobacco Retailer’s permit shall be established from time to time
by resolution of the City Council. The fee shall be calculated so as to recover the cost of
administration and enforcement of this chapter, including, for example, issuing a permit,
administering the permit program, retailer education, retailer inspection and compliance checks,
documentation of violations, and prosecution of violators, but shall not exceed the cost of the
regulatory program authorized by this chapter. All fees and interest upon proceeds of fees shall
be used exclusively to fund the program. Fees are nonrefundable except as may be required by
law.
5.56.090 Tobacco Retailer Operating Requirements and Prohibitions.
A. Compliance with All Laws Required. In the course of Tobacco Retailing or in the operation of
the business or maintenance of the location for which a permit issued, it shall be a violation of
this chapter for a permittee, or any of the permittee’s agents or employees, to violate any local,
state, or federal law applicable to Tobacco Products, Tobacco Paraphernalia, or Tobacco
Retailing.
B. Fixed Location Required. No Person shall engage in Tobacco Retailing at other than a fixed
location. For example, Tobacco Retailing by Persons on foot or from vehicles is prohibited.
C. Display of Permit. Each Tobacco Retailer permit shall be prominently displayed in a publicly
visible location at the permitted location.
D. Positive Identification Required. No Person engaged in Tobacco Retailing shall sell or
transfer a Tobacco Product or Tobacco Paraphernalia to another Person who appears to be under
the age of twenty-seven (27) years without first examining the identification of the recipient to
confirm that the recipient is at least the minimum age under state law to purchase and possess the
Tobacco Product or Tobacco Paraphernalia.
E. Self-Service Displays Prohibited. Tobacco Retailing by means of a Self-Service Display is
prohibited.
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F. Tobacco Display Prohibited without Valid Permit. A Tobacco Retailer without a valid
Tobacco Retailer permit shall not display Tobacco Products or Tobacco Paraphernalia in public
view. A Tobacco Retailer without a valid Tobacco Retailer permit shall not display any
advertisement relating to Tobacco Products or Tobacco Paraphernalia that promotes the sale or
distribution of such products from the Tobacco Retailer’s location or that could lead a reasonable
consumer to believe that such products can be obtained at that location.
G. Drug Paraphernalia. It shall be a violation of this chapter for any permittee or any of the
permittee’s agents or employees to violate any local, state, or federal law regulating controlled
substances or Drug Paraphernalia, except that conduct authorized pursuant to state law shall not
be a violation of this chapter.
H. Windows.
1. In the course of Tobacco Retailing or in the operation of a business or maintenance of a
location for which a permit issued, it shall be a violation of this chapter for a permittee, or any of
the permittee’s agents or employees, to cover more than 20 percent of the window area with
window signs in accordance with section 19.60.500 of this code.
2. All windows shall be maintained to ensure law enforcement personnel have a clear and
unobstructed view of the interior of the premises, including the area in which the cash registers
are maintained, from exterior public rights of way or from the entrance. However, this subsection
shall not apply to premises where there are no windows, or where the design or location of
windows or landscaping precludes a view of the interior of the premises from exterior public
rights of way or from the entrance.
I. Change in Information. A Tobacco Retailer shall inform the Police Department in writing of
any change in the information submitted on an application for a Tobacco Retailer’s permit within
ten (10) business days of a change.
5.56.100 Compliance Monitoring.
A. Compliance with this chapter shall be monitored by the Police Department. In addition, any
peace and/or code enforcement officer may enforce the provisions of this chapter.
B. The Police Department shall inspect each Tobacco Retailer at least one (1) time per twenty-
four (24) month period. Nothing in this paragraph shall create a right of action in any permittee
or other Person against the City or its agents.
C. Right of Access. The Police Department and/or their authorized representatives shall have full
access to enter a permitted Tobacco Retailer location to conduct an inspection during the
operating hours of the Tobacco Retailer. Failure to cooperate with any Police Department
inspection may result in a permit violation subject to suspension or revocation. This subsection
shall not be construed to deprive a licensee of any privilege guaranteed by the Fifth Amendment
to the Constitution of the United States, or any other constitutional or statutory privileges.
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5.56.110 Suspension or Revocation of Permit.
A. Suspension or Revocation of Permit for Violation. In addition to any other penalty authorized
by law, a Tobacco Retailer’s permit may be suspended or revoked if any court of competent
jurisdiction determines, or the Chief of Police finds based on a preponderance of the evidence,
after the permittee is afforded notice and an opportunity to be heard, that the permittee, or any of
the permittee’s agents, officers, partners, representatives, managers, or employees has violated
any of the requirements, conditions, or prohibitions of this chapter, or has pleaded guilty, “no
contest” or its equivalent, or admitted to a violation of any law designated in section 5.56.020
above as follows:
1. Upon a finding by the Chief of Police of a first violation of this chapter at a location, the
permittee shall be issued a warning by the Department.
2. Upon a finding by the Chief of Police of a second violation of this chapter at a location
within any sixty-month (60) period, the permit shall be suspended for ninety (90) days.
3. Upon a finding by the Chief of Police of a third violation of this chapter at a location within
any sixty-month (60) period, the permit shall be suspended for one (1) year.
4. Upon a finding by the Chief of Police of a fourth violation of this chapter at a location
within any sixty-month (60) period, the permit shall be revoked.
B. The Chief of Police shall serve the Tobacco Retailer, either personally or by first class mail
addressed to the Authorized Address, with dated written notice of the decision to suspend or
revoke the permit. A suspension or revocation notice shall state the reasons for the action, the
effective date of the decision, and the right of the permittee to appeal the decision to the City
Manager. An appeal to the City Manager is not available for a revocation made pursuant to
subsection (C) below. Any appeal must be filed in writing with the City Clerk within fourteen
days of service of the notice. The City Manager’s determination regarding the suspension or
revocation shall be final. The City Manager shall provide dated written notice to the Tobacco
Retailer, either personally or by first class mail addressed to the Authorized Address, of the City
Manager’s determination and the right of the Tobacco Retailer to seek judicial review of the City
Manager’s determination.
C. Revocation of Permit Wrongly Issued. A Tobacco Retailer’s permit shall be revoked if the
Chief of Police finds, after the permittee is afforded notice and an opportunity to be heard, that
one or more of the bases for denial of a permit under section 5.56.020 existed at the time
application was made or at any time before the permit issued, or one or more of the bases for
denial of a renewal permit under section 5.56.050 existed at the time the renewal permit was
issued. Notice and appeal of the revocation shall be conducted in accordance with subsection B
above.
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D. If a permit issued under this chapter is suspended or revoked, all Tobacco Products and
Tobacco Paraphernalia at the suspended or revoked Tobacco Retailer’s location shall be removed
from public view for the duration of the suspension or revocation. The Tobacco Retailer
additionally shall not display any advertisement relating to Tobacco Products or Tobacco
Paraphernalia that promotes the sale or distribution of such products from the Tobacco Retailer’s
location or that could lead a reasonable consumer to believe that such products can be obtained at
that location for the duration of the suspension or revocation.
5.56.120 Violations; Penalties.
A. It shall be unlawful for any Person to violate any provision, or to fail to comply with the
requirements, of this chapter or any regulation adopted hereunder. Any person violating any of
the provisions or failing to comply with any of the requirements this chapter or any regulation
adopted hereunder shall be guilty of a misdemeanor punishable by a fine of not more than
$1,000.00 or imprisonment for a period of not more than six months, or by both a fine and
imprisonment. Each day that a violation continues is deemed to be a new and separate offense.
No proof of knowledge, intent, or other mental state is required to establish a violation.
B. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this
chapter shall also constitute a violation of this chapter.
C. Any condition caused or allowed to exist in violation of any of the provisions of this chapter
or any regulation adopted hereunder is a public nuisance and may be abated by the City, or by
the City Attorney on behalf of the people of the State of California, as a nuisance by means of a
restraining order, injunction, or any other order or judgment in law or equity issued by a court of
competent jurisdiction. The City, or the City Attorney on behalf of the people of the State of
California, may seek injunctive relief to enjoin violations of, or to compel compliance with this
chapter or seek any other relief or remedy available at law or equity, including the imposition of
monetary civil penalties. Each day that a violation continues is deemed to be a new and separate
offense and subject to a maximum civil penalty of $2,500.00 for each and every offense.
D. Tobacco Retailing Without a Valid Permit; Ineligibility for Permit. In addition to any other
penalty authorized by law, if the Chief of Police finds based on a preponderance of evidence,
after notice and an opportunity to be heard, that any Person has engaged in Tobacco Retailing at
a location without a valid Tobacco Retailer’s permit, either directly or through the Person’s
agents or employees, the Person shall be ineligible to apply for, or to be issued, a Tobacco
Retailer’s permit as follows:
1. After a first violation of this section at a location within any sixty-month (60) period, no new
permit may issue for the Person or the location (unless ownership of the business at the location
has been transferred in an Arm’s Length Transaction), until thirty (30) days have passed from the
date of the violation.
2. After a second violation of this section at a location within any sixty-month (60) period, no
new permit may issue for the Person or the location (unless ownership of the business at the
location has been transferred in an Arm’s Length Transaction), until ninety (90) days have
passed from the date of the violation.
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3. After of a third or subsequent violation of this section at a location within any sixty-month
(60) period, no new permit may issue for the Person or the location (unless ownership of the
business at the location has been transferred in an Arm’s Length Transaction), until five (5) years
have passed from the date of the violation.
E. Whenever evidence of a violation of this chapter is obtained in any part through the
participation of a Person under the age of eighteen (18) years old, such a Person shall not be
required to appear or give testimony in any civil or administrative process brought to enforce this
chapter and the alleged violation shall be adjudicated based upon the sufficiency and
persuasiveness of the evidence presented.
F. The remedies specified in this section are cumulative and in addition to any other remedies
available under State or local law for a violation of this Code.
5.56.130 Requirement for Tobacco Retailer Permit; Operative Date.
For a Tobacco Retailer business not in existence, a Tobacco Retailer permit must be obtained
prior to commencement of Tobacco Retailing. For an existing Tobacco Retailer business, a
Tobacco Retailer permit must be obtained the later to occur of six (6) months after the date the
Police Department begins accepting applications for Tobacco Retailer permits or upon renewal
of the Tobacco Retailer’s business license issued pursuant to chapter 5.02 of this code.
Section II. Severability
If any portion of this Ordinance, or its application to any person or circumstance, is for
any reason held to be invalid, unenforceable or unconstitutional, by a court of competent
jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or
unconstitutionality shall not affect the validity or enforceability of the remaining portions of the
Ordinance, or its application to any other person or circumstance. The City Council of the City of
Chula Vista hereby declares that it would have adopted each section, sentence, cl ause or phrase
of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses
or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional.
Section III. Construction
The City Council of the City of Chula Vista intends this Ordinance to supplement, not to
duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in
light of that intent.
Section IV. Effective Date
This Ordinance shall take effect and be in force on the thirtieth day after its final passage.
Section V. Publication
The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause
the same to be published or posted according to law.
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Presented by Approved as to form by
Roxana Kennedy Glen R. Googins
Chief of Police City Attorney
PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista,
California, this 6th day of March 2018, by the following vote:
AYES: Councilmembers: Aguilar, Diaz, McCann, Padilla, and Salas
NAYS: Councilmembers: None
ABSENT: Councilmembers: None
Mary Salas, Mayor
ATTEST:
Kerry K. Bigelow, MMC, City Clerk
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO )
CITY OF CHULA VISTA )
I, Kerry K. Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing
Ordinance No. 3417 had its first reading at a regular meeting held on the 27th day of February
2018 and its second reading and adoption at a regular meeting of said City Council held on the
6th day of March 2018; and was duly published in summary form in accordance with the
requirements of state law and the City Charter.
Dated Kerry K. Bigelow, MMC, City Clerk
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3/16/2018